United States District Court, N.D. New York
April 7, 2005.
UNITED STATES OF AMERICA,
REJEAN PEPPIN and GILLES MERCIER, Defendants.
The opinion of the court was delivered by: DAVID HURD, District Judge
MEMORANDUM-DECISION AND ORDER
Defendants were indicted on charges relating to the possession
and sale of marijuana under 21 U.S.C § 841(a) and (b)(1)(B).
Defendant Rejean Peppin (`Peppin") was also indicted for bribery,
in violation of 18 U.S.C. 201(b)(1)(A) and (C). Defendant Gilles
Mercier ("Mercier") filed an omnibus pretrial motion seeking
dismissal of the indictment as it pertains to him based on
violations of the Speedy Trial Act ("Speedy Trial Act" or the
"Act"), 18 U.S.C. § 3161, the Sixth Amendment and Fed.R.Civ.P. 48(b),
and to suppress physical evidence pursuant to the Fourth
Amendment.*fn1 The government opposes. Oral argument was
heard on January 28, 2005 in Albany, New York. Decision was
On May 13, 2003 Mercier was arrested near Plattsburgh, New
York, after police found more than 100 pounds of marijuana in his
car. A local law enforcement officer claims Mercier was stopped
for using a cell phone and making an improper left hand turn. He
was alone in the car. Mercier denies both allegations. He was
arraigned the next day and charged with felony possession of
marijuana with intent to distribute in violation of
21 U.S.C. § 841. He was in detention until released after a hearing held on
May 23, 2003. Peppin was arrested and charged with intent to
distribute on June 9, 2003, when he was also alone and stopped
with more than 100 ponds of marijuana in his car.
The government did not take any action to follow up on
Mercier's arrest. There were no stipulations sought, motions
filed, or fruits of discovery provided. The case was assigned to
the same Assistant U.S. Attorney ("AUSA") throughout, who
concedes that the delay in proceeding to indictment is
attributable to the government.
Mercier was indicted August 11, 2004, fifteen months after his
arrest. The indictment lists five counts. Count 2 relates the
charge in the original criminal complaint against Mercier,
possession of marijuana with intent to distribute on May 13,
2003, but also names Peppin. Counts 1 and 3 are new charges and
also name both defendants. Count 3 relates the original complaint
against Peppin for possession of marijuana with intent to distribute on June 9, 2003. Count 1 charges Mercier and Peppin
with conspiracy to possess and distribute the marijuana from May
through June 2003 a time period which includes the arrest dates
in Counts 2 and 3. Counts 4 and 5 stand only against Peppin for
alleged bribery of U.S. Customs Inspectors on the above dates.
A. Speedy Trial Act and Count 2
The Speedy Trial Act requires that "[a]ny information or
indictment charging an individual with the commission of an
offense shall be filed within thirty days from the date on which
such individual was arrested or served with a summons in
connection with such charges." 18 U.S.C. § 3161 (b). If "no
indictment or information is filed within the time limit . . .
such charge against that individual contained in such complaint
shall be dismissed or otherwise dropped." 18 U.S.C. § 3162
(a)(1). The government concedes that the Act has been violated as
to Count 2 and that the charge must be dismissed. (Docket No. 18,
U.S. Opposition Mem. p. 10) The question is whether the charge
should be dismissed with or without prejudice. The defendant
seeks a dismissal with prejudice, and the government requests
dismissal without prejudice. The statute does not establish a
preference between the two. United States v. Coleman,
170 F. Supp. 2d 321, 324 (N.D.N.Y. 2001) (citing United States v.
Taylor, 487 U.S. 326, 334 (1988).
The determination is made through consideration of "among
others, each of the following factors: the seriousness of the
offense; the facts and circumstances of the case which led to the
dismissal; and the impact of a reprosecution on the
administration of [the Speedy Trial Act] and on the
administration of justice." 18 U.S.C. § 3162 (a)(1); Taylor,
487 U.S. at 336 (noting that district courts must carefully
consider each factor and clearly articulate their effect). The presence or absence of prejudice to
the defendant, though not dispositive, is also relevant. Id. at
1. Seriousness of the offense
Mercier is accused of possessing marijuana with intent to
distribute in violation of 21 U.S.C. § 841 (a)(1). If convicted,
the statute proscribes a minimum five year prison sentence.
21 U.S.C § 481 (b)(1)(B). Courts are reluctant to declare any
federal crime, especially felonies involving drugs, as "not
serious," and thus drug crimes are regularly, almost
automatically, deemed serious offenses for purposes of the §
3162(a)(1). "Any charge related to drug transactions must be
considered serious today." United States v. Giambrone,
920 F.2d 176, 178-179 (2d Cir. 1990) (case involved distributing and
conspiring to distribute eight ounces of cocaine); see
Taylor, 487 U.S. at 338 (narcotics charges involving 400 grams
of cocaine "serious"); United States v. Simmons, 786 F.2d 479,
485 (2d. Cir. 1986) (possession of six glassine envelopes
containing heroin with intent to distribute); United States v.
Clymer, 25 F.3d 824 (9th Cir. 1994) (conspiracy to distribute
and aiding and abetting manufacture of methamphetamine); United
States v. Phillips, 775 F.2d 1454, 1456 (11th Cir. 1985)
(importing marijuana); United States v. Rodriguez,
824 F. Supp. 657, 659 (W.D. Tex. 1993) (conspiracy to possess with intent to
The seriousness of the charge is considered for purposes of
weighing it against the seriousness of the delay and its effects.
See Simmons, 786 F.2d at 485. This inquiry is obviously
intended to be more complex than awarding a "yes" or "no"
determination of seriousness. "Any felony charge is serious. But
there are degrees of seriousness." United States v. Mancuso,
302 F. Supp 2d 23, 26 (E.D.N.Y. 2004). Mercier argues that the
offense is not serious enough to justify overlooking the fifteen
month delay. The drug at issue is marijuana an arguably less serious drug than heroin, cocaine or
methamphetamine. However, the charge is considered serious and
this factor weighs against dismissal with prejudice.
2. Facts and circumstances of the delay
The main considerations here are the length of delay and the
reasons for it. Fifteen months passed between the May 13, 2003
arrest and the August 11, 2004 indictment. The thirty day
requirement may be extended, or rather time may be excluded from
the ticking of the Speedy Trial clock, for several reasons listed
in the statute. See 18 U.S.C § 3161(h); see e.g. United
States v. Zedner, No. 04-CR-0821, 2005 U.S. App. LEXIS 3809 (2d
Cir. March 8, 2005) (most of seven year gap between indictment
and trial excluded from the running of the time clock). The
government does not argue that any of those circumstances apply
here, thus the full fifteen months is measured as a violation of
the Act. This is considered a serious delay. See Mancuso,
302 F.Supp. 2d at 27 (surveying relevant case law and listing cases
of violations of less than one month).
The inquiry thus turns to who is responsible for the delay and
for what reasons. Any delay attributable to the defendant weighs
against dismissal with prejudice, but there is no argument that
Mercier caused any of the delay. See e.g. United States v.
Agostini, 279 F. Supp. 2d 276, 279 (S.D.N.Y. 2003). Again, the
government concedes it is entirely responsible. Thus, it must be
considered "whether the failure of the United States was
inadvertent or intentional." United States v. Coleman,
170 F. Supp. 2d 321, 324 (N.D.N.Y. 2001). Though somewhat disturbing,
the government honestly, and thus to some extent commendably,
admits it neglected Mercier's case. When asked why nothing was
done between the arrest and indictment at oral argument, the AUSA
replied, "I have, because of the nature of the practice in Albany, not paid as much attention
to the Speedy Trial Clock as it deserves, and I have a number of
cases in this position."*fn2 After conceding responsibility
in its motion memorandum, the government explains that the delay
"was not occasioned by any bad faith purpose or tactical
advantage." (Docket No. 18, U.S. Opposition Mem. p. 5)
It is presumed that such candor is offered under the belief
that it doesn't matter that the government ignores a case as long
as it doesn't do it for strategic purposes or with some other
"bad faith" intention. This interpretation of what conduct
offends the Act is rejected in favor of the view that "the mere
lack of improper motive is not a sufficient excuse for the delay.
Some affirmative justification must be demonstrated to warrant a
dismissal without prejudice." United States v. Russo,
741 F.2d 1264, 1267 (11th Cir. 1984).
The Second Circuit held that, "in the absence of a factually
supported finding of bad faith or a pattern of neglect by the
local United States Attorney, an isolated unwitting violation of
the Speedy Trial Act cannot support a decision to dismiss with
prejudice." United States v. McCrudden, 222 F. Supp. 2d 352,
355 (E.D.N.Y. 2002) (citing United States v. Hernandez,
863 F.2d 239, 244 (2d Cir. 1988). The government conduct must be
"more than `an isolated unwitting violation' . . . [but rather] a
`truly neglectful attitude,' `bad faith,' a `pattern of neglect'
or other serious misconduct." United States v. Wells,
893 F.2d 535, 539 (2d Cir. 1990) (quoting Taylor, 487 U.S. at 338-39.
However, the government does not argue that the transgression
here was an "isolated unwitting violation." In fact, it has other
cases in this position. And "[a] truly neglectful attitude on the part of the
Government reasonably [may] be factored against it in a court's
consideration of this issue." Taylor, 487 U.S. at 338.
Mercier appropriately characterizes the government's conduct as
willful negligence and, depending on the other factors, such
conduct may be sufficient to justify a dismissal with prejudice.
As the court in United States v. Mancuso explained, "a reading
of Section 3162(a)(1) and Taylor demonstrates that all of the
various considerations are to be factored into the analysis, with
a recognition that each case is sui generis and that no one
consideration is generally dispositive." 302 F. Supp.2d 23, 31
(E.D.N.Y. 2004). For dismissal with prejudice after a short delay
and no prejudice to the defendant, more serious poor conduct than
mere oversight or negligence is required. For long delays with
more prejudice less "serious conduct" may suffice. Id. at 31;
Simmons, 786 F.2d at 485.
This case involves a fifteen month delay between arrest and
indictment. It's not as if the case was attended to but the
Speedy Trial clock and the need to seek stipulations was
inadvertently overlooked. The entire case was overlooked. There
was no ongoing investigation and no communication with counsel to
demonstrate anything but a truly neglectful attitude. This factor
weighs in favor of the defendant and dismissal with prejudice.
3. Impact of reprosecution
"The administration of justice depends heavily upon the prompt
processing of criminal proceedings. Unreasonable or unnecessary
delay can not only violate the rights of an accused under the
Sixth Amendment but also undermine respect for law and thus harm
the public." United States v. Hillegas, 578 F.2d 453, 456 (2d
Cir. 1978). "The [Speedy Trial] Act is intended both to protect
the defendant from undue delay in the resolution of his case and to benefit society by ensuring quick resolution of criminal
trials." Mancuso, 302 F.Supp. at 32.
This factor requires a court to consider the duration
of the delay in question, see United States v.
Stayton, 791 F.2d 17, 21 (2d Cir. 1986) (dismissal
with prejudice in light of enormity of delay of
twenty-three months); United States v. Cortinas,
785 F. Supp. 357, 359 (E.D.N.Y. 1992) (dismissal
without prejudice in light of minimal delay of seven
days); and any attitude or pattern of laxity by the
United States in complying with the Act. See
United States v. Wilson, 11 F.3d 346, 352 (2d Cir.
1993); United States v. Kottmyer, 961 F.2d [569,
572 (6th Cir. 1992)] (dismissal without prejudice
where there existed no pattern of intentional delay
by United States); United States v. Giambrone,
920 F.2d at 181 (dismissal with prejudice in light of
government's "extremely lax" attitude in case toward
requirements of the Act).
United States v. Coleman, 170 F. Supp. 2d 321, 326 (N.D.N.Y.
"`[A] violation of any of the Act's time limits . . .
negatively impacts on the administration of the Act.' A dismissal
with prejudice will further the administration of justice by
acting as `a deterrent to other would-be offenders [and a]
reaffirmance of Congress' basic purpose in enacting the Speedy
Trial Act.'" United States v. Bilotta, 645 F. Supp. 369, 373
(E.D.N.Y. 1986) (quoting United States v. Caparella,
716 F.2d 976, 981 (2d Cir. 1983). A fifteen month delay with no cognizable
government activity between arrest and indictment is a classic
example of a situation the Act was enacted to prevent.
Overlooking, and thus to some extent condoning, this sort of
neglectful, and rather cavalier, attitude towards the Speedy
Trial clock would undermine administration of the Act.
The other consideration under this factor is the impact on the
administration of justice, or more particularly the impact of the
delay on defendant. This is often considered a separate or fourth
factor for consideration. Regardless, a court must consider the
"unexpressed factor of prejudice to the defendant." United
States v. Upton, 921 F. Supp. 100 (E.D.N.Y. 1995). "The length of delay, a measure of the
seriousness of the speedy trial violation, in some ways is
closely related to the issue of the prejudice of the defendant.
The longer the delay, the greater the presumptive or actual
prejudice to the defendant in terms of his ability to prepare for
trial. . . ." Taylor, 487 U.S. at 340.
"Prejudice typically involves the effect that delay has on a
defendant's ability to mount a defense." Mancuso
302 F. Supp.2d at 32 (citing United States v. McCrudden, 222 F.Supp.2d 352,
356 (E.D.N.Y. 2002)). "But inordinate delay may also prejudice a
defendant by interfering with his `liberty, whether he is free on
bail or not, and . . . may disrupt his employment, drain his
resources, curtail his associations, subject him to public
obloquy, and create anxiety in him, his family and his friends.'"
Id. (quoting Taylor, 487 U.S. at 340). Mercier argues that
this is what he suffered. Besides the uncertainty and anxiety
which he and his family have felt since his arrest, the pretrial
limitations on his travel have led to lost income and financial
hardship. He was a long distance truck driver, and is now largely
unable to work in that capacity.
Considering that administration of the Speedy Act would be
undermined by reprosecution and the prejudice to the defendant as
a result of this extraordinary delay, this factor weighs for the
defendant and dismissal with prejudice.
Though the seriousness of the offense weighs in favor of
dismissal without prejudice, that factor is substantially
outweighed by the absence of any government activity in the case
for fifteen months and the effects of reprosecution. Count 2 will
be dismissed with prejudice.
B. Speedy Trial Act and Counts 1 and 3
The Speedy Trial Act only requires dismissal of "such
charge[(s)] against that individual contained in such complaint." 18 U.S.C. § 3162 (a)(1).
"[I]t does not prevent later prosecution for different crimes
even if the `subsequent charges . . . arise from the same
criminal episode as those specified in the original complaint or
were known or reasonably should have been known at the time of
the complaint.'" Bilotta, 645 F. Supp. at 371 (quoting
Napolitano, 761 F.2d at 137).
The government argues that Count 1 and 3 the conspiracy
charge and the possession charge on a new date (June 9, 2003)
are new charges against Mercier and not subject to dismissal. The
government reads the recent Second Circuit case of United States
v. Gaskin as stating a bright-line rule that "if the charge was
not stated in the complaint and it appears in the indictment, the
Speedy Trial Act does not apply to the additional charges."
364 F.3d 438, 453 (2d Cir. 2004). The Gaskin court held that:
when a complaint charge and an indictment charge
involve overlapping or even identical facts,
dismissal is not warranted under § 3162(a)(1) if the
indictment charge requires proof of elements distinct
from or in addition to those necessary to prove the
crimes pleaded in the complaint. Under such
circumstances, the charge in the indictment is simply
not "`such charge'" as was pleaded in "`such
complaint.'" United States v. Napolitano,
761 F.2d at 137 (quoting § 3162(a)(1)).
Gaskin, 364 F.3d at 453.
There is a recognized, though not often applied, exception to
this rule the gilding exception. Mercier argues that it applies
here because Counts 1 and 3 demonstrate government gilding. Case
law does not provide a definition of the gilding exception much
beyond the dictionary definition of the word gilding.
Webster's Third New International Dictionary defines
gilding as "embellishing." Webster's Collegiate
Dictionary defines it as "unnecessary ornamentation."
See United States v. Oliver, 683 F. Supp. 35, 38 (E.D.N.Y. 1988) (citing Webster's Collegiate
Dictionary). Thus, a gilded charge is one that merely
annotates in more detail the same charge alleged in
the initial accusatory instrument.
United States v. Bailey, 111 F.3d 1229
, 1236-1237 (5th Cir.
1997). The Fifth Circuit, in Bailey, concluded that the
misdemeanor and felony counts at issue in its case contained
different elements, and were thus distinct charges, not gilded
charges for Speedy Trial Act purposes. Id.
The Third Circuit in United States v. Watkins, which was
cited by the Second Circuit in the Gaskin case, discussed the
exception at length, but also declined to apply it. 339 F.3d 167,
175-78 (3d Cir. 2003). The court considered whether a substantive
charge just gilded a conspiracy charge. The Watkins court
interpreted Bailey as laying out an "elements test" in light of
the application of the gilding exception in double jeopardy
analysis. The Third Circuit declined to recognize the exception,
but indicated that if it did, the exception would operate like
the "elements" test in Bailey. Id. at 178. The court rejected
a "same-proofs test" or a "transaction test" dismissal if "the
charges in the indictment are based on the same underlying
conduct as the original complaint." Id. at 177-78.
The Second Circuit acknowledged the exception in United States
v. Napolitano noting that there may be instances where dismissal
is required because the indictment merely "`gilds' an earlier
charge" or sets forth a "mere difference in accusational dates."
761 F.2d 135, 38 (2d Cir. 1985). This mechanical approach most
often results in maintenance of the charges. See e.g.,
United States v. Cortinas, 785 F. Supp. 357, 362 (D.N.Y. 1992);
United States v. Velasquez, 890 F.2d 717, 719-720 (5th Cir.
1989); United States v. Archer, 984 F. Supp. 321, 326 (E.D. Pa.
1997). The exception was applied, however, in United States v.
Bilotta. 645 F. Supp. 369 (E.D.N.Y. 1986). The charges at issue
for comparison were both conspiracy charges but brought under
different statutes. The court found that the superceding
indictment was "simply a more detailed version of the crimes
described in the complaint; it is the completed canvas of the
painting first etched in the complaint." Id. at 371. This
holding comports with the rule that the exception does not apply
to charges which contain new elements. But the court went on to
explain its conclusion that the government was engaged in
gilding. The court's Speedy Trial analysis of the indictment was
of the pleadings as a whole as opposed to a element-by-element
Even if these technical differences sufficed to
satisfy the purposes of the Speedy Trial Act, a
common sense comparison of the two documents and the
particular circumstances of this case militate
against an interpretation of the statute that would
permit the government to split hairs in this manner.
The prosecution has not explained except in the most
technical terms how the conspiracies alleged in the
superseding indictment can be distinguished from
those described in the complaint; it has not even
attempted to demonstrate any practical distinction
between the two supposedly different plots alleged.
Nor has it made a claim that it has acquired
additional evidence, or even devised a new legal
theory, that would explain why it waited a year and a
half to present the superseding indictment. Finally,
its dilatory approach to this prosecution and its
disregard of its obligations to the Court and the
defendant provide further reason to doubt the good
faith of the government. This subsequent prosecution
should be barred because it is based on an indictment
which merely `gilds' an earlier charge.
Bilotta, 645 F. Supp. at 372 (internal citations and quotations
This approach to gilding is applicable in the present case
despite the fact that the new charges contain additional
elements. A common sense comparison of the two documents and the
particular circumstances of this case militate against an
interpretation of the statute that would permit the government to
add charges simply to avoid the application of the Act. It is not likely that the Appellate Courts, including
the Second Circuit in Gaskin, intended to be understood to say
that District Courts should merely line up the elements of the
individual charges and finding some left over in the subsequent
pleading, determine that the Speedy Trial Act has not been
violated. As the court in Bilotta related above, in some cases
this would be to miss the forest for the trees. In some cases,
like the instant case, the government may gild its case as a
Here, Mercier was arrested alone on May 13, 2003. Peppin was
arrested alone on June 9, 2003. However, the indictment charges
both defendants with possession on both dates. In addition, the
government framed the added conspiracy charge to encompass the
dates of both transactions. However, the government concedes now,
and knew when it framed the indictment, that the May 13, 2003
charge violated the Speedy Trial Act. These facts coupled with
the dilatory prosecution of the case, make it difficult to avoid
an inference of bad faith on the part of the government. The
inference of bad faith refers particularly to constructing the
indictment, not the lack of prosecutorial action preceding it.
The American Heritage Dictionary (Second Edition) defines gilding
as to "give an often deceptively attractive or improved
appearance." After all, gilding is actually a process of making a
thing seem like something it is not.
The definition of gilding has room in it for more than just
cases that simply reword the original charges, but also those
that demonstrate bad faith efforts to avoid the Speedy Trial Act.
If the exception does not contain room for the occasional
egregious case, then the Act may regularly be avoided by adding
new charges to indictments whether or not they have merit. The consequences of such a holding have been considered. A
dismissal of Counts I and 3 should not be read to mean that the
government must now be careful to add every possible charge at
arrest or its initial indictment to avoid a Speedy Trial Act
dismissal. "Indeed, justice is usually best served by
discouraging hasty prosecutorial judgments with respect to
aggravated charges." Gaskin, 364 F.3d at 455. It is held only
that in cases like this one, where fifteen months pass with no
government activity on a case, with no new information and no
justification for the delay beyond stating that like some other
cases this one was simply neglected, the government may not
simply add factually related charges to avoid application of the
Despite the government's argument to the contrary, dismissal of
Counts 1 and 3 would not conflict with a comprehensive reading of
Gaskin. Before noting that charges that add additional elements
do more than gild the original charges the court stated: "We need
not here decide whether there are any circumstances where we
might apply the concept of gilding to a Speedy Trial Act
challenge." Id. at 456.
After laying out the relevant law and noting the exception, the
court began its discussion of the Speedy Trial Act by noting not
only the purpose of the Act, but what its purpose is not.
We exercise such caution in the dismissal of criminal
charges mindful that the purpose of the Speedy Trial
Act is simply "to expedite the processing of pending
criminal proceedings," not to supervise prosecutorial
discretion in investigating and charging crimes not
actually pending before the court. United States v.
Hillegas, [578 F.2d 453, 456 (2d Cir. 1978).] The
distinction is of no small import. As Hillegas
notes, "to invade the latter area might well involve
the legislative and judicial branches in matters that
fall primarily, if not exclusively, within the
jurisdiction of the executive branch." Id. at 457.
Gaskin, 364 F.3d at 452. The Gaskin court's concerns are not a problem here. The only
intrusion into the exercise of executive discretion implicated in
this case is the government's unbridled discretion to do nothing.
Under the Act, that discretion is bridled. The government must
act to drop the charges, seek stipulations or at least provide a
court with a record of some activity of prosecutorial effort in a
case so that a court might defer to it in a balancing process.
None of that occurred here. The Gaskin court considered a
record that revealed at least some government attention. See
Id. at 450 (noting "the docket sheet indicates that in early
August 1999, Gaskin changed counsel, and through October of that
year, the parties wrangled over the conditions of Gaskin's
continued release."). The government was at least actively
involved in the case. Gaskin involved prosecution of an
extensive conspiracy that spanned a full year and involved
numerous participants including couriers that traveled across the
United States. Here the government took no action where it was
required to prosecute a small organization that it charges
operated in a relatively local area for approximately a month.
Refusing to hold that this is permissible does not constitute
interference with executive discretion beyond the required
oversight provided in a plain reading of the statute.
Therefore, Counts I and 3 will be dismissed because the
governments dilatory approach to this case and the disingenuous
nature of the added charges compel an inference that the
government gilded the indictment, at least in part, to avoid the
Speedy Trial Act. To the extent that this holding expands the
previously undefined contours of the gilding exception, it is
believed that there is little risk that this will promote
judicial interference with prosecutorial discretion. On the facts
of this case, the exception still has little breadth as almost any government activity would have
served to negate the inference of bad faith on the part of the
2. With or Without Prejudice
As with the dismissal of Count 2, 18 U.S.C. § 3162 (a)(1)
requires consideration of three factors to determine whether the
dismissal should be with or without prejudice. The same analysis
of the three factors discussed above for Count 2 must be applied
to Counts 1 and 3.
As to seriousness, Count 1 states a conspiracy charge and adds
to the seriousness of the crime charged. As noted above, this
seriousness weighs in favor of dismissal without prejudice. The
second factor requires consideration of the facts and
circumstances of the delay. The fifteen month delay due to
government neglect is now coupled with what is found to be
gilding of an indictment. This factor weighs in favor of
dismissal with prejudice.
As for the effects of reprosecution, the Speedy Trial Act is
undermined, as is the public faith in government, when
disingenuous changes in pleadings may be readily employed to
circumvent the Act. That Mercier was the subject of the gilded
indictment is clearly prejudicial to him. This third factor also
weighs in favor of the defendant and dismissal with prejudice.
Accordingly, even considering the added gravity of the charge in
Count 1, the balance tips in favor of dismissal with prejudice
considering the weight of the other two factors. Counts 1 and 3
will be dismissed with prejudice.
The fifteen month delay due to complete government neglect and
the effects of reprosecution compel dismissal of Count 2 with
prejudice. Counts 1 and 3 represent gilding of the original
complaint and are therefore subject to dismissal pursuant to §
3162(a)(1). Counts 1 and 3 must also be dismissed with prejudice due to the
length of the delay, the government's gilding of the indictment
and the effects of reprosecution.
If the Speedy Trial Act does not direct the dismissal of this
indictment against Mercier with prejudice, it is difficult to
envision a fact pattern which would require such a dismissal. The
Act would become quite meaningless a paper tiger with no teeth.
It must be emphasized that this case presents a very unique set
of facts. Fortunately, the government seldom ignores a case for
fifteen months after charges are filed. Dismissal under the Act
will continue to be very, very rare.
Accordingly, it is
ORDERED that Counts 1, 2, and 3 of the indictment as applied to
defendant Gilles Mercier are dismissed with prejudice.
IT IS SO ORDERED.